Democrats realize by now that Mitch McConnell won’t bluff when it comes to judicial nominations, right? After having at least two nominations to the appellate court blocked by the “blue slip” process — which started as a courtesy to home-state Senators — McConnell tells the New York Times that he’s had enough of minority obstruction:
Though the Senate has virtually eliminated the ability of the minority party to block appointments to the bench from the Supreme Court on down, individual senators can still thwart nominees from their home states by refusing to sign off on a form popularly known for its color — the blue slip.
Pause a moment here. “The Senate” didn’t do this on its own; Harry Reid did it in 2013 by forcing an end to the filibuster on presidential appointments and undermining the normal rule-making process. The exception was for Supreme Court nominations, which McConnell eliminated through the same process. Reid conducted that rule change to allow Barack Obama to stack the DC Circuit Court of Appeals. (To be fair, Carl Hulse notes this history later in this article.)
Now, with some Democrats refusing to consent as the Trump administration moves to fill scores of judicial vacancies, Senator Mitch McConnell, the Kentucky Republican and majority leader, is for the first time publicly advocating that the blue slip be made strictly advisory when it comes to appeals court nominees — the most powerful judges after those on the Supreme Court.
“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” Mr. McConnell said in an interview with The New York Times for “The New Washington” podcast. He said he favored retaining the blue slip authority for lower-level district court judges.
Chuck Schumer, who cheered on Reid in 2013, suddenly wants to keep minority protections in place for appellate-court nominations:
“Getting rid of the blue slip would be a mistake,” Mr. Schumer said in an interview. He said he would argue to Mr. McConnell and Senator Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, that since majority control of the Senate has been in flux in recent years, members of both parties should remember that they could find themselves back in the minority.
“Preserving some of the minority’s power in the Senate has broad support because every one of us knows we’re probably going to be in some of each,” Mr. Schumer said.
Yes, well, Schumer should know that better than anyone. His party got badly burned by Reid’s rule changes this year already, and he wants to keep them from getting burned again. Unfortunately, in both cases, his members are holding up judicial appointments for strictly partisan reasons, which undermines the value of the blue slips.
Al Franken’s holding up David Stras, a conservative Minnesota Supreme Court jurist with an impeccable track record, supposedly because Franken hasn’t had time to research Stras. Both senators from Oregon have stalled Ryan Bounds’ nomination because the White House didn’t consult with them first. Both are excuses; Democrats want to block qualified conservative jurists from taking places on the appellate court, not protect the judiciary from either corruption or incompetence, which is ostensibly why the blue slip process exists in the first place.
Besides, blue slips are much more a courtesy than a rule, with a checkered history of import. According to the Congressional Research Service, blue slips emerged as a formal process a century ago, a representation of an informal courtesy extended beforehand. During its first four decades, a held blue slip didn’t prevent the Judiciary Committee from acting on a nomination and passing it to the Senate floor. In fact, the Judiciary Committee has only allowed the blue slip to completely halt consideration of a nominee for brief periods — from 1956 to 1978 and from 2001-2003 for a single blue-slip play from a home-state Senator, and from 1989 to the present only when both home-state senators refused to return the blue slip. From 2003, the latter only was effective when the White House hadn’t consulted with both senators, which is the situation claimed by Oregon’s Jeff Merkley and Ron Wyden.
The blue slip clearly isn’t a sacrosanct minority protection. It’s been strictly advisory for most of its life as a Senate tradition, and should go back to that status now. McConnell and Judiciary chair Chuck Grassley ought to put an end to the discourteous abuse of senatorial courtesy.
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